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January 20, 1982

Gloria WOLKENSTEIN, Kathryn Silkes, Philip Rumore and Vincent Nola, individually and on behalf of all others similarly situated, Plaintiffs,
Eugene T. REVILLE, individually and as Superintendent of Schools; Claude D. Clapp, individually and as Chief Fiscal Officer of the City of Buffalo Public School System; Florence E. Baugh; David Kelly; Joseph E. Murphy; Louis C. Benton; Joseph D. Hillery; Mozella Richardson; Dennis Bulera; Oscar Smuckler; John C. Fiorella, as members of the Board of Education of the City School District of the City of Buffalo, Defendants

The opinion of the court was delivered by: ELFVIN


Plaintiffs have brought this class action on behalf of themselves and others similarly situated, seeking a judgment declaring the procedures set forth in section 210 of New York's Civil Service Law ("CSL") unconstitutional on their face and as applied because they deprive public employees of their property without due process of law. Plaintiffs allege that these procedures are defective in that they (1) fail to provide an impartial initial hearing on the question of strike participation, and (2) do not provide any hearing at all prior to the commencement of deductions from wages as a penalty for strike participation. Plaintiffs also seek to recover the amounts deducted from their wages and from the wages of the class in accordance with those procedures. Now before me are plaintiffs' motions for class action certification pursuant to Fed.R.Civ.P. rule 23 and for summary judgment pursuant to Fed.R.Civ.P. rule 56. Defendants have submitted memoranda opposing plaintiffs' motion for summary judgment; no opposition has been raised anent the motion for class action certification.


 The individual plaintiffs, together with "all others similarly situated" in this case, comprise a body consisting of nearly 3,000 persons, all of whom were teachers in the Buffalo public school system at the time of a teachers' strike beginning September 7, 1976 and ending September 24, 1976. On October 14, 1976 defendant Reville, Buffalo's Superintendent of Schools, determined that this strike violated CSL § 210 and that each of the individual plaintiffs and all of the members of the class had participated in the strike. By a notice dated October 14, 1976, Reville informed plaintiffs and the members of the proposed class of this determination and advised them that they were subject to the penalties provided by CSL §§ 210.2(f) and (g). These paragraphs, since repealed, *fn1" imposed on striking public employees a one-year probationary period and payroll deductions in an amount equal to twice the daily rate of pay for each day of participation in a strike.

 According to a stipulation by the parties, the named plaintiffs filed objections to Reville's October 14th determinations, as authorized by CSL § 210.2(h), which provides for review by Reville of his initial determination. On December 3, 1976 the named plaintiffs received form notices summarily dismissing their objections and denying a hearing, on the grounds that they had failed to establish that they did not participate in the strike or to raise a question of fact as to their participation, as provided by section 210.2(h). Altogether approximately 400 members of the proposed class filed such objections, of whom about 325 were denied hearings on the same grounds. These secondary determinations by Reville were challenged by several class members in the New York courts, pursuant to CSL § 210.2(h) and Article 78 of New York's Civil Practice Law and Rules ("CPLR"). It is stipulated that of these challenges only three led to a hearing on the merits. The results of these hearings have not been indicated.

 It is further stipulated that defendant Clapp caused approximately six million dollars in section 210 penalties to be deducted from the salaries of the members of the proposed class, the deductions being made in three parts from paychecks due on the third, seventeenth and thirty-first of December, 1976. It is stipulated that this entire amount was retained by defendants and applied by them to the operating budget and expenses of the Buffalo School District.

 Plaintiffs' Motion For Class Action Certification

 In order to certify an action as a class action this Court must be satisfied both that the prerequisites to a class action stated in Fed.R.Civ.P. rule 23(a) are met and that the action falls in one of the categories set forth in Fed.R.Civ.P. rule 23(b).

 The rule 23(a) prerequisites to a class action are four:

"(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."

 Prerequisite (2) presents no obstacle to certification here. There are apparently no questions of fact involved, except tangential issues related to the requested relief. Plaintiffs urge the invalidity of the law under which they were penalized without regard to factual guilt or innocence. This contention is the only central question of law presented by the Complaint and it is clearly common to all who were penalized under the statute in issue. This point demonstrates that the typicality requirement of prerequisite (3) is also satisfied.

 The numerosity requirement, prerequisite (1), would also appear to be amply satisfied where the class that plaintiffs allege to be entitled to relief numbers nearly 3,000 members. It has been observed that "while there are exceptions, numbers in excess of forty, particularly those exceeding one hundred or one thousand have sustained the (numerosity) requirement." 3B Moore's Federal Practice, P 23.05(1).

 Although defendants have not directly opposed certification, they have made a passing reference to the plaintiffs' "failure to exhaust their administrative remedies," in opposing plaintiffs' motion for summary judgment. Memorandum of Law in Opposition to Plaintiffs' Motion for Summary Judgment, at p. 6. If the failure of most members of the putative class of nearly 3,000 plaintiffs to avail themselves of state administrative remedies under CSL § 210.2(h) would bar them from participating in the present action, the number of the potential class would be greatly reduced and fulfillment of the numerosity prerequisite would become less apparent.

 Such a result is not warranted here. Although the exhaustion requirement applies to class actions just as it does to individual actions, "it is not necessary for each member of an alleged class to exhaust administrative remedies in order for a class action to be maintained." Barlow v. Marion Cty. Hospital Dist., 495 F. Supp. 682, 693 (M.D.Fla.1980). The rule, rather, is "that exhaustion by at least one member seeking to represent the class is a necessary prerequisite for a class action." Ibid., citing Swain v. Hoffman, 547 F.2d 921 (5th Cir. 1977), and Phillips v. Klassen, 163 U.S. App. D.C. 360, 502 F.2d 362 (D.C.Cir.1974). Inasmuch as it is apparent from the defendants' own representations that many of the class here have exhausted the state administrative remedies, with six of them actually proceeding to state judicial review of the administrative determinations, no exhaustion problem arises in this case to obstruct certification of the proposed class.

 Other grounds also support this conclusion. The United States Court of Appeals for the Second Circuit has recently indicated that exhaustion of state administrative remedies is not required where a plaintiff's federal civil rights claim is that the available state administrative remedies cannot afford due process of the law, so that "the adequacy of the remedy is "for all practical purposes coextensive with the merits of the plaintiff's constitutional claim.' " Swan v. Stoneman, 635 F.2d 97, 103-04 (1980). Plaintiffs here, like the plaintiff in Swan v. Stoneman, have directly challenged the sufficiency of the state remedies so that "it would be pointless to require (plaintiffs) to exhaust those remedies." Id. at 104. Also arguing for this result is the unavailability of the desired class relief in the state administrative procedures. See, id., at 104-05. It should be additionally noted that "[it] is well settled that exhaustion of state judicial remedies is not a prerequisite to adjudication of (42 U.S.C.) § 1983 claims in federal court." Id. at 102.

 I conclude, then, that the exhaustion doctrine poses no obstacle to inclusion of the entire class argued for by plaintiffs, and that a class numbering nearly 3,000 satisfies the numerosity requirement of Fed.R.Civ.P. rule 23(a)(1).

 The fourth prerequisite under rule 23(a), that the individual plaintiffs will adequately represent the interests of the class, presents a subtler question. As the United States Court of Appeals for the Second Circuit has put it,

"an essential concomitant of adequate representation is that the party's attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that plaintiff has interests antagonistic to those ...

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